Meera Nair

fear v. education

In Posts on March 8, 2012 at 12:53 pm

To all writers:

It is disappointing to read of the continued distortion of fair dealing through the call to action of The Writers’ Union of Canada and Access Copyright. But I am not surprised; it is much easier to provoke fear than to embark upon the longer journey of educating people.

Fair dealing is not appropriation. It is a modest measure that permits some reproduction of copyrighted materials, under certain conditions. Each situation must be judged on its own merits. At its core, fair dealing allows creativity to continue by ensuring that copyright is held to its 300 year-old structure as a set of limited rights.

In 2004 the Supreme Court of Canada upheld fair dealing in the situation of a library offering some services of reproduction to its patrons. The ruling was highly nuanced and resulted in providing a framework to guide Canadians in future use of fair dealing. The Supreme Court Justices unanimously agreed that consideration of fair dealing must be multi-facetted; and that commercial concern “is neither the only factor nor the most important factor.” Nor does this imply that commercial concerns are not a factor at all.

Your representatives insist that the inclusion of “education” as a permissible category of fair dealing will open the floodgates to mass copying.* This is patently false. Meeting the requirement of category is but a first step; the right to copy must still be evaluated within the framework offered by the Supreme Court decision of 2004. If your representatives would put some effort into educating writers, teachers, and Canadians as a whole about the legal functioning of fair dealing, we would all be better off.

Paradoxically, members of the publishing community are doing the exact opposite. As Michael Geist reports, arguments were made to our Government that the framework of inquiry offered by the Supreme Court not be included in the text of the law. This is perplexing to say the least. Having the nuance of the law explicitly laid out in the law is a vital step to ensuring that Canadians learn how to use fair dealing appropriately.

But of course, then it would be harder to distort what fair dealing is all about.

The Call for Action campaign makes the disingenuous remark: “If much more of the work of creators can be used for free in educational settings, the educational market is at risk of being legislated away.” Fair dealing is not a substitute for legitimate licensing. But if Canadians should think so, it is only because representatives of writers have gone out of their way to spread that mistaken message.

* My work on the political misfortunes of fair dealing is here.

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